[2014] AATA 918
Division
GENERAL ADMINISTRATIVE DIVISION
File Number
2013/2706
Re
Shangale Ali
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal
Regina Perton, Member
Date
11 December 2014
Place
Melbourne
The Tribunal affirms the decision under review.
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Regina Perton, Member
© Commonwealth of Australia 2014
KEYWORDS
COMPENSATION – whether injury arose out of or in the course of employment – decision
affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 6, 14, 16
CASES
Comcare v Mather (1995) 56 FCR 456
Comcare v PVYW [2013] HCA 41
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
Re O’Dea and Comcare (1996) 45 ALD 643
Roncevich v Repatriation Commission (2005) 222 CLR 115
REASONS FOR DECISION
Regina Perton, Member
11 December 2014
1.
Shangale Ali works for the Department of Immigration and Border Protection (the
Department). Mr Ali spent a year working at the Curtin Detention Centre (Curtin)
commencing in February 2012. His work, which was of an administrative nature, usually
comprised a five day week with weekends off although an intake or outflow of detainees
outside regular work time resulted in him working extra hours.
PAGE 2 OF 11
2.
Curtin is located some 40 kilometres from Derby in Western Australia (WA).
Mr Ali
lived in accommodation provided by the Department in Derby.
3.
On Friday 14 December 2012 a number of Curtin Departmental staff shared dinner at a
hotel in Derby to farewell a senior staff member. After the dinner, Mr Ali and some of
his work colleagues went to another hotel where they stayed until closing time. Mr Ali
and a housemate called in to another work colleague’s home for a short time then started
walking home. There was no readily available transport.
4.
On their way home, Mr Ali and his housemate passed by a fracas where they recognised
colleagues who appeared to be under attack by a large local group. Concerned about his
colleagues’ welfare, Mr Ali was approaching them when he was hit from behind and fell
to the ground.
He sustained injuries that resulted in his being taken to hospital,
undergoing treatment and assessment but the full extent of his injuries was not
recognised at the time. He was diagnosed with a fractured right collarbone (clavicle) for
which he required surgery and time off work. He also had a bump on his head. Several
weeks later, Mr Ali was diagnosed with a fracture to his right fibula which also arose
from the assault.
5.
Mr Ali lodged a claim for compensation on 31 December 2012. Comcare rejected the
claim on 13 February 2013 on the basis that the injury did not arise out of or in the
course of Mr Ali’s employment. On 12 April 2013, a review officer of Comcare rejected
the claim for the same reasons as the original decision maker. On 7 June 2013 Mr Ali
lodged an application with the Tribunal.
6.
There is no dispute that Mr Ali suffered injuries as a result of being hit by an unknown
person on the date in question. The issue before the Tribunal is whether Mr Ali’s injury
arose out of or in the course of his employment.
RELEVANT LEGISLATION
7.
Section 4 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) provides
definitions relevant to this matter:
PAGE 3 OF 11
place of residence, in relation to an employee, means:
(a) the place where the employee normally resides;
(b) a place, other than the place referred to in paragraph (a), where the
employee resides temporarily, as a matter of necessity or convenience, for the
purposes of his or her employment; or
(c) …
place of work, in relation to an employee, includes any place at which the employee is
required to attend for the purpose of carrying out the duties of his or her employment.
8.
Section 5A of the Act defines injury as follows:
5A Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or
mental injury arising out of, or in the course of, the employee’s employment;…
9.
Section 6 of the Act provides further guidance on what constitutes an injury arising out of
employment:
6 Injury arising out of or in the course of employment
(1) Without limiting the circumstances in which an injury to an employee may be treated
as having arisen out of, or in the course of, his or her employment, an injury shall, for the
purposes of this Act, be treated as having so arisen if it was sustained:
(a) as a result of an act of violence that would not have occurred but for the
employee’s employment or the performance by the employee of the duties or
functions of his or her employment; or
(b) while the employee was at the employee’s place of work, for the purposes of
that employment, or was temporarily absent from that place during an ordinary
recess in that employment; or
(c) while the employee was temporarily absent from the employee’s place of
work undertaking an activity:
(i) associated with the employee’s employment; or
(ii) at the direction or request of the Commonwealth or a licensee; or
(d) while the employee was, at the direction or request of the Commonwealth or
a licensee, travelling for the purpose of that employment; or
…
PAGE 4 OF 11
10.
Sections 14 and 16 of the Act set out that a person who suffers an injury covered by the
Act is entitled to compensation if the injury results in incapacity for work or impairment
and for payment of relevant medical treatment.
WAS MR ALI’S INJURY WORK-RELATED?
11.
There is no disagreement between the parties as to the nature of Mr Ali’s injuries and the
treatment he required. There are different views on whether the injuries arose out of Mr
Ali’s employment.
12.
Mr Ali maintains that the injuries arose because he was working for the Department in a
remote location and was housed in accommodation provided by the Department near that
location. He indicated that there was no alternative to walking home via the route he was
taking to that accommodation at the time of the injuries, namely after midnight on
Saturday 15 December 2012.
13.
Mr Ali pointed out that all staff on deployment to Curtin were expected to adhere to the
Australian Public Service (APS) Values and Code of Conduct whether at the workplace
or elsewhere. Each person was required to sign an undertaking prior to commencing the
deployment which was as follows:
By accepting an IMA deployment you will be representing the department at all times. In
your role, it is likely you will be known or readily identifiable as a DIAC employee in
settings outside the work environment. In this regard, the expectations regarding your
appropriate conduct extend beyond your place of employment, and includes representing
the department outside of working hours. As such it’s expected that you will at all times
behave in a way that upholds the values and good reputation of the APS, you display
professionalism and courtesy at all times, and you adhere to the APS Code of Conduct.
14.
In his written statement received by the Tribunal on 25 July 2013, Mr Ali went on to
state:
If I represent the department at work and outside of working hours, and this should
include anything that happens to me outside my working hours while on deployment.
DIAC should be consistent with this…
I would also like to emphasise that my sole reason for being in Derby was to fulfil my
responsibilities at the Curtin Immigration Detention Centre, and if I wasn’t deployed by
DIAC I would not have been in Derby, hence not suffered injuries resulted in clavicle and
Fibula fractures and ongoing inconvenience…
PAGE 5 OF 11
…
I am having difficulties to comprehend my injuries not being accepted as a workplace
injury, in light of the APS values and Code of Conduct agreement I signed. In my
opinion DIAC owed a duty of care to me and others who were deployed under this
agreement. I believed that I was covered 24/7 under the course of my employment.
…
15.
On 14 December 2012 Mr Ali and other staff members attended a dinner at the Boab
Hotel in Derby to farewell Kerry Hay, a senior officer at Curtin who was leaving to take
up a position elsewhere on the following day. Ms Hay was the Executive Level Duty
Officer who was rostered for after-hours work on the evening of 14 December 2012. Ms
Hay provided a statement as to what happened prior to and after the incident in which Mr
Ali was injured, stating amongst other things:
…
On the evening of 14 December 2012 a number of staff including myself and Shangale
Ali went for dinner at the Boab Inn and then to the Spinifex Hotel. I went home between
11:00 pm and midnight, however my observations during the evening were that all
members of our group were in good spirits and no one was behaving in an inappropriate
manner…
At around 1:00 am 15 December 2012, I received a phone call on the duty phone from
Leigh Jefferson who advised that he and four other departmental staff, including
Shangale, had been attacked in Derby while walking home. All staff were at the hospital
receiving treatment….
When I attended the hospital, I did not observe any DIAC staff member to be intoxicated.
All five staff were visibly distressed, with Shangale particularly in pain, nursing his
shoulder…
…
On no occasion during my deployment did I have any reason to speak with Shangale in
relation to his behaviour during or out of work hours and I believe he amply met the
conditions of his deployment. As a manager in the department, I consistently advised my
team, including Shangale, that at all times on deployment they represented the
department and I further believed that any issues which occurred during deployment was
part of our employment as we were at that location at the direction of our employer.
…
16.
Bruce Needham, Deputy State Director of the Department in Western Australia provided
a statement dated 5 September 2014, in which he stated that in December 2012, his role
was to oversee all detention facilities in South Australia and WA, including Curtin. He
provided information about Mr Ali’s role at Curtin:
…
PAGE 6 OF 11
6 Mr Ali’s duties were predominantly office based and administrative in nature. Any
work outside of the office was limited to tasks associated with administrative duties…
7 Mr Ali worked a daily shift, which was usually from 8am to 4pm, with occasional
overtime, if required, to address administrative demands…
8 Unless specifically required to be “on call”, there was no restriction on how any
employee spent their time out of work or after work hours.
9 If an employee was “on call”, he/she would be on a “restriction allowance”.
10. Restrictions for employees that were “on call” included non-consumption of alcohol.
11 On 14 December 2012, Mr Ali was not a “restriction allowance” and consequently he
was free to do what he liked as long as it was not incompatible with the values and good
reputation of the Australian Public Service.
12 From a management perspective, we did not specifically require anyone to participate
in social events.
17.
Danielle Thompson, who was a Team Leader at Curtin in December 2012, provided a
statement dated 17 September 2014:
…
3 I did not consider Kerry Hay’s farewell on 14 December 2012 a work related event (the
dinner) – attendance was entirely voluntary and I considered it an unofficial casual
social gathering amongst work colleagues rather than a formal work function.
4 The dinner finished at around 8pm. I went home after the dinner and a number of
other attendees did as well.
5 Neither I, nor anyone else I am aware of, suggested that drinking at the Spinifex Hotel
after the dinner was a necessary part of farewelling Ms Hay and from my perspective,
anyone who attended the Spinifex Hotel went there purely as a result of a personal
choice in relation of their private socialising.
6 Employees at the Curtin Immigration Detention Centre were not specifically
encouraged to drink or socialise together.
18.
Danielle Thompson had sent an email to a number of the Departmental staff on 14
December 2012:
Hi All
It is Kerry’s last day before she leaves us for greener pastures. We are going to the Boab
for dinner at 6pm to send her off.
If you would like to come please let me know by 2pm so that I can book a table at the
Boab. If I have missed someone please forward this on.
19.
Mr Ali told the Tribunal that had he been provided with accommodation nearer the centre
of town, as quite a few Departmental employees were, he would not have had to walk
home past the place where the locals had attacked his colleagues and where he, too, was
PAGE 7 OF 11
attacked by an unknown assailant. The accommodation that he had been provided was
more towards the outskirts of the town. He believed that the route he was taking was the
appropriate one.
20.
In terms of transport to work, senior officers or departmental staff on long-term
deployment were given DIAC vehicles. Other staff used the bus service organised by the
Department to transport them between their accommodation and place of work. Mr Ali
advised that buses left Derby on the half hour between 7 and 8 am in the morning and left
Curtin between 4 and 5 pm on the half hour for the return trip. He indicated there was a
lack of availability of transport at night in Derby for himself and his colleagues.
21.
Mr Ali conceded that he was not on actual work duties at the time of the incident but
maintained that he would not have been injured had he not been in Derby due to his work
at Curtin. He also told the Tribunal of a situation that was similar to his where a
Departmental officer who had injured her ankle while bush walking on Christmas Island
had apparently been compensated unlike the stance taken in his case.
22.
Mr Ali said that all he was seeking was the re-crediting of the leave he had taken because
of the effects of the injuries and reimbursement of medical expenses.
23.
Comcare submitted that there was nothing more than a tenuous connection between the
injuries suffered and the applicant’s employment. Mr Berger, appearing for Comcare,
stated that the injury was suffered in an interval between two discrete periods of work.
Mr Ali had finished work on Friday afternoon and was not due back at work until
Monday morning. Mr Berger pointed out that Mr Ali was free to do as he wished during
that period.
Mr Berger submitted that the dinner at the Boab Hotel was a social
gathering. Even if it had been a work function (which Mr Berger did not concede) the
decision to go to the Spinifex Hotel after that, followed by a visit to a friend’s residence
was not something related to Mr Ali’s employment.
24.
Mr Berger cited several cases concerning workplace injury, including some in which a
person was found to have been injured in the course of his or her employment such as
Roncevich v Repatriation Commission (2005) 222 CLR 115. He also cited other cases
PAGE 8 OF 11
where a person was working in a particular location when they suffered an injury but the
injury was deemed not to have arisen out of employment (e.g. Re O’Dea and Comcare
(1996) 45 ALD 643).
25.
Mr Berger pointed to the relevance of Hatzimanolis v ANI Corporation Ltd (1992) 173
CLR 473 in this matter in relation to whether Mr Ali was injured during an interval
within an overall period of work or between two discrete work periods. He cited part of
page 483 in Hatzimanolis, where the majority stated:
….Where an employee performs his or her work at a permanent location or in a
permanent locality, there is usually little difficulty in identifying the period between the
daily starting and finishing points as a discrete working period… On the other hand,
there are cases where an employee is required to embark upon some undertaking for the
purpose of his or her work in circumstances where, notwithstanding that it extends over a
number of daily periods of actual work, the whole period of the undertaking constitutes
an overall period or episode of work. Where, for example, as in Danvers, an employee is
required to go to a remote place and live in accommodation provided by his or her
employer for the limited time until a particular undertaking is completed, the correct
conclusion is likely to be that the time spent in the new locality constitutes one overall
period or episode of work rather than a series of discrete periods or episodes of work…
26.
Mr Berger submitted that when Mr Ali was injured, he had been living in Derby for
nearly 10 months. He did not live ‘on base” (for example, Comcare v Mather (1995) 56
FCR 456) nor was he subject to direction outside of working hours unless on call. Mr
Berger pointed out that the situation falls outside the description of an overall period of
work as set out in Hatzimanolis. He suggested that Mr Ali’s case was more akin to
O’Dea and other cited cases where the injuries occurred between two discrete periods of
work.
27.
It was also put that if the Tribunal were to find that Mr Ali was injured during an overall
period of work, then the High Court’s decision in Comcare v PVYW [2013] HCA 41
would be applicable.
28.
Mr Berger submitted that Mr Ali was injured as a result of personal, private choices he
made. These led to him being on the streets of Derby in the early hours of a Saturday
morning where he encountered the street brawl of which he unfortunately became a
victim when he went to check on the condition of colleagues who were apparently earlier
victims of the violence.
PAGE 9 OF 11
29.
Whilst the Tribunal sympathises with Mr Ali’s plight and can understand why he has
pursued this matter, it must consider whether he is entitled to compensation on the basis
of the legislation and the current applicable case law.
30.
The Tribunal accepts Comcare’s submission that Mr Ali’s choice to go to dinner and then
another venue on Friday night after work was not something his employer required him
to do. While there was a work connection in that it was a dinner to honour a departing
colleague, it was nonetheless not something that his employer had directed him to do or
expected him to attend.
31.
Mr Ali agreed with the statement made by Mr Needham that he worked regular hours on
Monday to Friday with occasional overtime. The buses which conveyed Mr Ali and his
colleagues from Curtin to Derby ran at half hour intervals between 4pm and 5pm. The
dinner was on Friday night at 6pm in Derby. Ms Thompson’s statement and the text of
her email confirms that attendance at the dinner at The Boab was voluntary. The
evidence of Ms Hay, the departing colleague, Ms Thompson and that of Mr Ali himself
was that the subsequent move to The Spinifex was a decision made by some of the
people who were at the dinner. The Tribunal finds that the visit to, and time spent at the
second hotel, and then briefly at a colleague’s place, was certainly not work-related.
32.
Mr Ali submitted that the injuries had only occurred because his work was at Curtin and
his employer’s choice of accommodation provided to him in Derby resulted in him
having to walk past the brawl on foot to get home.
33.
Working in a particular remote location with employer provided accommodation is not
sufficient, on its own, to make an injury suffered in that location compensable under the
Act. There are various cases with opposing outcomes where a person has been injured
which working in a remote location at the request of their employer, many of which were
identified by Mr Berger,. However the citation in Hatzimanolis, where the injured
person was in fact successful in being compensated for his injury, allows for differing
outcomes depending on the circumstances.
PAGE 10 OF 11
34.
The Tribunal is not satisfied that one can classify the entire time spent by Mr Ali in
Derby as being at work. The Tribunal does not accept that the requirement that Mr Ali
adhere to the APS Code of Conduct outside his working hours turns his off-duty periods
into periods of employment. He chose to accept a Departmental offer to work at Curtin
and voluntarily accepted an extension of the initial contract. He had been in Derby for
almost ten months and was free to spend his leisure time as he wished. While the injury
occurred in the town where the Department provided accommodation, that is not
sufficient of itself to turn the injury into one compensable under the Act.
35.
The Tribunal finds that Mr Ali’s injury has not arisen out of, or in the course of, his
employment. He therefore fails to meet the definitions of injury set out in sections 5A
and 6 of the Act.
DECISION
36.
The Tribunal affirms the decision under review.
I certify that the preceding 36 (thirty six) paragraphs are a true copy of the
reasons for the decision herein of
Regina Perton, Member
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Associate
Dated 11 December 2014
PAGE 11 OF 11
Date of hearing
22 September 2014
Applicant
In person
Counsel for the Respondent
Mr A Berger
Solicitors for the Respondent
Sparke Helmore